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Anger as Baltovich gets nothing

The Ontario government's refusal to provide financial redress to two wrongly convicted men shows the compensation system is arbitrary and unfair, legal experts say.

Media surround Robert Baltovich April 22, 2008, after his acquittal on a charge of murdering Elizabeth Bain in 1990. (RENÉ JOHNSTON / TORONTO STAR) | Order this photo

Robert Baltovich and Elizabeth Bain pictured together from an undated Bain family photo album. Bain, 22, disappeared in 1990. Her body was never found. (PHOTO SUPPLIED)

By Tracey TylerRobert BenzieStaff Reporters

Thu., Jan. 14, 2010

The Ontario government's refusal to provide financial redress to two wrongly convicted men shows the compensation system is arbitrary and unfair, legal experts say.

Attorney General Chris Bentley said Wednesday it was "not appropriate" to compensate Robert Baltovich and Anthony Hanemaayer for their pain and suffering.

"They have both been found not guilty as a result of the steps that the justice system has taken," Bentley said.

James Lockyer, a lawyer representing the men, sought compensation in both cases as well as an inquiry into why it took the province's top court so long to quash Baltovich's conviction. Calls for a public inquiry were also denied.

"This attorney general is completely indifferent to the wrongly convicted and what they go through," Lockyer said.

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Baltovich was wrongly convicted of murdering his girlfriend, Elizabeth Bain, in June 1990, a crime for which he served eight years behind bars, while Hanemaayer was wrongly convicted of a 1987 knifepoint sexual assault committed by serial killer Paul Bernardo. Both were acquitted in 2008.

By contrast, the province paid $6.45 million in compensation last year to Steven Truscott, who was convicted and sentenced to hang at 14 for the murder of his classmate, Lynne Harper, in 1959.

Speaking with reporters, Bentley described Truscott's case as an "extremely unusual, once-in-a-lifetime situation."

To be deserving of compensation, a criminal defendant requires more than an acquittal and something closer to a finding of "factual innocence," he suggested.

But even in Truscott's case the Ontario Court of Appeal didn't go that far. In acquitting him in 2007, the court said making a declaration of factual innocence is "a most daunting task" in cases that do not involve DNA evidence.

In fact, there have been at least a half dozen cases across Canada in which provincial governments have compensated people who were exonerated through other means.

Among them was Richard Norris, who was wrongly convicted of a sexual assault in Fergus, Ont., in 1979 and acquitted in 1991 when his best friend confessed to the crime.

In most cases, compensation came after the government had been hit with a civil lawsuit. This time Lockyer tried to "bypass" that process by simply asking Bentley to compensate the two men.

"Although there's no doubt that people like Morin and Truscott and others are properly deserving of compensation, the sad fact is that other persons whose cases do not generate the same kind of political heat for the government are not able to be treated so fortunately," said Louis Sokolov, a Toronto lawyer who has filed civil lawsuits on behalf of the wrongly convicted.

An independent commission should be assessing compensation requests, he said.

Defending his decision, Bentley noted Hanemaayer pleaded guilty.

But there are many reasons an innocent person might do so, said University of Western Ontario law professor Chris Sherrin. In Hanemaayer's case, the Crown's eyewitness identification, while clearly wrong, seemed overpowering and he was afraid he was heading to prison for six years.

When offered two years less a day in jail in exchange for a guilty plea, he took the deal.

Neither Baltovich nor Hanemaayer were surprised with the decision given the way they've been treated by the justice system, Lockyer said.

"Their lives were completely wrecked by what happened to them, the amount of time they spent in jail," said Lockyer, who is a founding director of the Association in Defence of the Wrongly Convicted.

"Rob Baltovich was in for eight years. He went into jail with a recently acquired university degree and has come out unable to secure employment.

"Anthony Hanemaayer is without employment because he can only work seasonally at roofing."

Lockyer has advised them both to pursue a civil lawsuit to try to get financial compensation, and expects them to be successful.

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